Laying Low the High Flying Evangelicals at the United States Air Force Academy? Thanks, But No Thanks

Journal of Law and Education, Oct 2007 by Fitschen, Steven W

So while all of Cook's objections would fall under the views of the Framers, the final Part examines her position under current Establishment Clause jurisprudence.

III. THE CURRENT JURISPRUDENCE

While Cook's article at times takes a shotgun approach to all the many alleged problems at the Academy, one of its main thrusts deals with a matter that certainly is occurring-chaplains freely exercising their religion. Cook made no bones about seeking to shut the door on the chaplains' rights. For example, she wrote: "there is no question that the Establishment Clause concerns should win out and evangelical Christians should be prohibited from proselytizing to fellow service members and cadets."50

Fortunately for chaplains (and cadets) who seek to serve their country without abandoning their right to exercise their religion, Cook's perceived tension between the two Clauses, at least here, is non-existent and her analysis is flawed. There are four primary problems with her argument.

First, she claimed that elementary (and secondary) school cases should control because these institutions are analogous to military academies in terms of coercion,51 relying on two decisions-Mellen v. Bunting52 and Anderson v. Laird.53 Anderson is simply inapposite, dealing as it did with mandatory chapel services.54 Clearly, requiring chapel attendance is coercive. Equally clearly, the Academy does not require chapel attendance-as evidenced by Cook's own discussion of the "Heathen Flight."55 In turn, Mellen does stand for the proposition for which Cook cited it. Moreover, Mellen is simply a poorly decided opinion. To start, it misconstrued Anderson, claiming it had considered chapel attendance voluntary yet coercive.56 Second, it refused to apply Marsh v. Chambers.57 Thus, the Anderson court declared that it must employ one of the three tests mentioned by Cook: the Lemon test, the endorsement test, or the coercion test.58 Yet, the Mellen court favored the coercion test as the proper test to employ, only conducting a Lemon analysis because it felt "compelled" to do so since Lemon had not been overturned. In fact, the Mellen court did not even conduct an independent endorsement analysis.59

In its coercion analysis, the Mellen court made the assertion on which Cook fastened: "It is undoubtedly true that grade school children are particularly 'susceptible to pressure from their peers towards conformity.' Recognizing a difference between such children and college students, certain of our sister circuits have approved the decisions of public universities to offer an invocation at graduation ceremonies. . . . Although VMI's cadets are not children, in VMI's educational system they are uniquely susceptible to coercion."60

I do not find the equating of grade school children and military cadets persuasive. To the extent that others do, it proves too little. The Mellen court's reason for finding the prayers coercive is tied directly to the unique facts of the case. There, the school instituted prayers for the specific purpose of building cohesion. The Mellen court explained: